UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHARLES LEWIS DODSON,

Plaintiff,

 Civil Action 2:11-cv-164

v. Judge Michael H. Watson

 Magistrate Judge E.A. Preston Deavers

WARDEN EDWARD BANKS, et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

Plaintiff, Charles Lewis Dodson, an Ohio inmate who is proceeding in forma pauperis

and without the assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983

against Defendants Noble Correctional Institution (“NCI”) Warden Edward Banks and NCI

Health Care Administrator Vanessa Sawyer.1

 Plaintiff also named as Defendants Wexford

Health Sources, Inc.; Wexford Health Services Administrator Sara Seeburger; and Wexford

employees at Noble Correctional Institute (collectively, the “Wexford Defendants”); as well as

“all unknown others,” including unspecified administrative and medical staff. He seeks

monetary and injunctive relief. Plaintiff asserts that Defendants utilized cruel and unusual

punishment and were deliberately indifferent to his serious medical needs in violation of the

Eighth Amendment to the United States Constitution. This matter is before the Court for

consideration of Wexford Defendants’ Motion to Dismiss pursuant to Federal Rules of Civil

1

 Defendants Banks and Sawyer filed an Answer to the Complaint and are not movants

for the instant motion. 

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Procedure 12(b)(6) and 12(b)(5). For the reasons that follow, it is RECOMMENDED that

Defendant’s Motion to Dismiss be GRANTED. (ECF No. 7.) 

I. BACKGROUND 

Plaintiff is presently incarcerated at NCI in Caldwell, Ohio. According to Plaintiff as set

forth in his Complaint, he suffers from complications resulting from a broken left cheekbone. 

Plaintiff alleges that prison and medical officials did not adequately treat his cheekbone when he

broke it some years ago. Plaintiff alleges that the medical staff set his cheekbone incorrectly. 

His complications worsened in 2010, causing sinus trouble, headaches, dizzy spells, and possible

inner ear trouble. Plaintiff alleges that his symptoms “escalated” in 2010 as a result of a

reduction and eventual cessation of his prescription medication. (Compl. 5, ECF No. 3.) On

October 15, 2010, Plaintiff presented his symptoms to the nurse’s sick call. A doctor did not

treat Plaintiff or prescribe him the medication he desired. Instead, a nurse provided Plaintiff

with over-the-counter (“OTC”) medication, and charged him a co-pay fee for ongoing care. 

Plaintiff asserts that he has been denied medical care because of “budget cut backs” and that a

doctor should have prescribed him medication. (Id.) He further maintains that instead of a

nurse, he should have seen a doctor and that he should not be charged for these visits, which he

characterizes as “chronic” care. (Pl.’s Mem. In Opp. 2, ECF No. 9.) Plaintiff does not allege

that NCI consistently denies him access to a doctor; nor does he allege any other specific

instances in which he was in need of medical attention but denied care.

On February 24, 2011, Plaintiff filed his Complaint. Plaintiff asserts that Defendants’

denial of full and proper medical care amounted to cruel and unusual punishment and deliberate

indifference. (Compl. 5, ECF No. 3.) Plaintiff seeks damages for pain and suffering, punitive

damages, and an injunction compelling “full care - even repair surgery or treatment.” (Id. at 6.)

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On April 15, 2011, the Wexford Defendants filed the subject Motion to Dismiss. (ECF

No. 7.) The Wexford Defendants assert that they are entitled to judgment under Rules 12(b)(6)

and 12(b)(5) because Plaintiff has failed to state a claim, never properly effected service and did

not exhaust his administrative remedies. 

Plaintiff counters that he did sufficiently exhaust his administrative remedies. He

explains that his grievances have consistently stated his inability to see a doctor and his

disagreement that his condition is such that he should not have to pay for his care. He also

emphasizes that the care he received was not adequate. Plaintiff contends that his claim is

properly filed under 42 U.S.C. § 1983 and that Defendants’ motion is “pre-mature” because his

incarceration makes it difficult to perform discovery. (Pl.’s Opp. 4, ECF No. 9.) Plaintiff also

posits that through discovery, he could specify whom he intends to sue under his “all unknown

others” category. (Id. at 3.) Finally, Plaintiff represents that, if given more time, he can obtain

testing from a medical professional to support his allegations.

 II. MOTION TO DISMISS STANDARD 

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 566 U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009). 

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial

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plausibility is established “when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

S.Ct. 1949. 

In considering whether this facial plausibility standard is met, a Court must construe the

complaint in the light most favorable to the non-moving party, accept all factual allegations as

true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning

Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations

omitted). In addition, the Court holds pro se complaints “‘to less stringent standards than formal

pleadings drafted by lawyers.’” Garrett v. Belmont County Sheriff’s Dept., No. 08-3978, 2010

WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520

(1972)). The Court is not required, however, to accept as true mere legal conclusions

unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). 

III. ANALYSIS 

As set forth above, the Wexford Defendants advance three alternative bases for dismissal. 

First, they contend that Plaintiff’s complaint fails to state a claim upon which relief can be

granted. Second, they assert that dismissal is appropriate because Plaintiff failed to properly

effect service. Finally, the Wexford Defendants contend that Plaintiff failed to exhaust his

administrative remedies as required under 42 U.S.C. § 1997e, as amended by the Prison

Litigation Reform Act (“PLRA”). Because the undersigned concludes that Plaintiff has failed to

state an Eighth Amendment claim, it is unnecessary to consider Defendants’ alternative

arguments in favor of dismissal. 

It is well established that “[t]he Eighth Amendment forbids prison officials from

unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate indifference

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toward [his] serious medical needs.” Jones v. Muskegon County, 625 F.3d 935, 941 (6th Cir.

2010) (internal quotations and citations omitted). A claim for deliberate indifference “has both

objective and subjective components.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir.

2011). The United States Court of Appeals for the Sixth Circuit has explained:

The objective component mandates a sufficiently serious medical need. [Blackmore

v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir.2004).] The subjective component

regards prison officials’ state of mind. Id. Deliberate indifference “entails

something more than mere negligence, but can be satisfied by something less than

acts or omissions for the very purpose of causing harm or with knowledge that harm

will result.” Id. at 895–96 (internal quotation marks and citations omitted). The

prison official must “be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.” Id. at

896 (internal quotation marks and citation omitted).

Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011). 

The Sixth Circuit has also noted that in the context of deliberate indifference claims:

“[W]e distinguish between cases where the complaint alleges a complete denial of

medical care and those cases where the claim is that a prisoner received inadequate

medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). 

Where a prisoner alleges only that the medical care he received was inadequate,

“federal courts are generally reluctant to second guess medical judgments.” Id. 

However, it is possible for medical treatment to be “so woefully inadequate as to

amount to no treatment at all.” Id.

Alspaugh, 643 F.3d at 169. Along similar lines, “[o]rdinary medical malpractice does not satisfy

the subjective component.” Grose v. Corr. Med. Servs, Inc., 400 F. App’x 986, 988 (6th Cir.

2010). Furthermore, “a difference of opinion between [a prisoner] and the prison health care

providers and a dispute over the adequacy of [a prisoner’s] treatment . . . does not amount to an

Eighth Amendment claim.” Apanovitch v. Wilkinson, 32 F. App’x 704, 707 (6th Cir. 2002).

Here, Plaintiff’s allegations fail to sufficiently plead both the objective and the subjective

components of an Eighth Amendment deliberate indifference claim. Although Plaintiff’s failure

to sufficiently plead one of these components is dispositive, the undersigned nonetheless

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addresses both components for the sake of completeness.

A. Objective Component

Plaintiff fails to allege a sufficiently serious medical need that satisfies the objective

component of a deliberate indifference claim. Plaintiff’s disagreement with a medical

practitioner’s decision to discontinue his prescription medication does not amount to an Eighth

Amendment claim. See Apanovitch, 32 F. App’x at 707. Defendant’s classification of Plaintiff’s

condition as non-chronic such that he must pay for his OTC medication fails to satisfy the

objective component. Although a prison must provide its inmates with adequate medical care,

this care does not necessarily have to be free of charge. See Reynolds v. Wagner, 128 F.3d 166,

174 (3d Cir. 1997) (“If a prisoner is able to pay for medical care, requiring such payment is not

‘deliberate indifference to serious medical needs.’”). Here, Plaintiff has not alleged that he is

unable to pay for his OTC medication. Plaintiff’s contention that he should have been examined

by a doctor instead of a nurse on October 15, 2010 likewise fails to meet the objective

requirement because he has failed to allege circumstances suggesting an objective need for a

doctor on that date. As set forth above, Plaintiff sought medical attention for discomforts such as

sinus trouble, headaches, dizzy spells, and possible inner ear trouble. These symptoms do not

evidence an obvious immediate need for a doctor rather than a nurse. Finally, Plaintiff has failed

to offer verifying medical evidence demonstrating that his delay in seeing a doctor cause serious

medical injury.

B. Subjective Component

Plaintiff likewise fails to allege facts sufficient to establish the subjective component of a

deliberate indifference claim. Indeed, Plaintiff’s complaint is self-defeating in this regard. 

Plaintiff does not allege that Defendants perceived a “substantial risk” to his health, nor does he

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allege that Defendants “disregarded that risk.” Comstock, 273 F.3d at 703. Rather, Plaintiff

simply alleges that he received “inadequate care” due to “budget cut backs.” (Compl. 5, ECF

No. 3.) Therefore, it is clear that even Plaintiff does not believe that his nurse and other officials

“subjectively perceived a risk of harm and then disregarded it.” See Comstock, 273 F.3d at 703. 

Moreover, Plaintiff’s allegations that Defendants denied him medical care are belied by his

allegations that he presented his symptoms to a nurse.

IV. MOTION TO STRIKE

After the Wexford Defendants filed their Reply, Plaintiff filed a “Rebuttal

Memorandum.” The Wexford Defendants moved to strike the document as inconsistent with the

Court’s Local Rules, which prohibit such filings without leave of Court upon a showing of good

cause. S. D. Ohio Civ. R. 7.2(a)(2). The Court has reviewed the memorandum and concludes

that nothing contained therein alters the analysis set forth above. Accordingly, Defendants’

Motion to Strike is DENIED AS MOOT. (ECF No. 12.) 

IV. CONCLUSION

For the reasons state above, Defendants’ Motion to Strike is DENIED AS MOOT. 

(ECF No. 12.) Further, the undersigned RECOMMENDS that Defendants’ Motion to Dismiss

(ECF No. 7) be GRANTED such that Plaintiff’s claims against Wexford Defendants are

DISMISSED WITH PREJUDICE. (ECF No. 7.)

V. PROCEDURE ON OBJECTIONS 

 If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

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question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

Date: December 1, 2011 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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